Sexual Assault Policy

Introduction

Case Western Reserve University is a community dependent upon trust and respect for its constituent members: students, faculty, staff and those under temporary contract. Sexual assault is a violation of that trust and respect and will not be tolerated. Sexual assault is a serious crime that can occur to men and women, whether gay, straight, transgender or bisexual.

The following definition of sexual assault is relevant to Case Western Reserve University policies and procedures. All students, faculty, and staff of the university are subject to this policy. (For a print version, please download the PDF.)

An individual who violates this policy may also be subject to criminal prosecution and civil litigation. For legal definitions refer to the Ohio Revised Code.

Sexual Assault Definition

Any non-consensual physical contact of a sexual nature, whether by an acquaintance or by a stranger, is a sexual assault. Physical resistance need not occur to fulfill the definition of sexual assault. Consent CAN NEVER be given by anyone under the age of sixteen. Sexual assault includes, but is not limited to the following:

Consent

Consent is the equal approval, given freely, willingly, and knowingly of each participant to desired sexual involvement. Consent is an affirmative, conscious decision - indicated clearly by words or actions – to engage in mutually accepted sexual contact. A person forced to engage in sexual contact by force, threat of force, or coercion has not consented to contact. Lack of mutual consent is the crucial factor in any sexual assault. Consent CANNOT be given if a person's ability to resist or consent is substantially impaired because of a mental or physical condition or if there is a significant age or perceived power differential. Examples include, but are not limited to being:

unconscious,

frightened,

physically or psychologically pressured or forced,

intimidated,

substantially impaired because of a psychological health condition,

substantially impaired because of voluntary intoxication, or

substantially impaired because of the deceptive administering of any drug, intoxicant or controlled substance

Reporting

The university strongly encourages persons who have been sexually assaulted to report the assault, to seek assistance, and to pursue judicial action for their own protection and that of the entire campus community. When conducting the investigation, the university's primary focus will be on addressing the sexual assault and not on other university policy violations that may be discovered or disclosed. Anyone who has been sexually assaulted may choose to pursue both criminal prosecution and university disciplinary processes. To preserve evidence for the option of pursuing criminal prosecution or university internal disciplinary processes, a person should report the sexual assault to the university and/or the local police. However, the university recognizes that a person who has been sexually assaulted retains the right not to pursue either criminal prosecution or a university judicial proceeding. Choosing not to pursue university or criminal action, however, does not remove the responsibility of the university to investigate and/or take action (See Investigative Responsibility Section of this policy).

Medical Care/Emergency Room Examination

Any person who has been sexually assaulted may go directly to the emergency room of any local hospital for medical attention. An individual who has been sexually assaulted is urged to seek medical evaluation as soon as possible. For a list of hospitals close to campus, including those with a SANE (Sexual Assault Nurse Examiner) Unit or staff specially trained for sexual assault examination and evidence collection, refer to the appropriate Privileged Communication Resource charts in this policy.

Responsibility of Confidentiality

When a report of sexual assault is made, both the accused and the accuser, and all identified witnesses who are named in the investigation, will be notified of the university's expectation of confidentiality. Breaches of confidentiality or retaliation against: the person bringing the complaint; any person assisting with the investigation; or the person or individuals being charged with the complaint; will result in disciplinary review. The university will make all reasonable efforts to maintain the confidentiality of parties involved in sexual assault investigations.

Parental/Legal Guardian/Partner Notification

The university is committed to providing support to anyone involved in a sexual assault. In some instances when there is a health or safety concern, the university may need to notify the parents, guardian, or partner of the individual involved in the sexual assault. In making this determination, the university will consider the wishes of those involved, as well as their personal safety, and the safety of the campus community. In addition, when the person sexually assaulted is under the age of 18 or under 21 and physically or mentally impaired, both privileged and limited confidential sources generally are required to report the abuse to the appropriate social service agency or the police.

Privileged Communication Reporting vs. Limited Confidential Reporting

Before selecting a reporting resource you may want to consider the following information. Under the law, there is a difference between "privileged" and "limited confidential" reporting:

Privileged Reporting consists of those communications that legally cannot be disclosed, without the reporter's consent, to any other person, except under very limited circumstances such as an imminent threat of danger to self or others. When reporting to a privileged source, the information shared between the reporting person and the care provider is privileged and ordinarily will not be disclosed, even to other members of the university community such as Case Police or the Student Affairs Office.
Examples of privileged reporting resources include:
» University Counseling Staff (Psychiatrists, Psychologists, Social Workers)
» University Health Service Staff (Physicians, Nurses, or Nurse Practitioners)
» The Flora Stone Mather Center for Women (Licensed Professional-Health Advocate)
» Campus Clergy

Limited Confidential Reporting consists of those communications that will not be disseminated to others except on a need-to-know basis. Primary to a limited confidential reporting source is balancing the wishes of the reporting person while protecting the overall university community and assuring the appropriate disciplinary measures are taken including criminal, civil, and administrative.

A limited confidential reporting source has the obligation to enlist designated campus resources to ensure that necessary steps are taken to protect the community as a whole and that appropriate disciplinary measures are considered and imposed. Such disclosures will be limited to a finite group of people all with the same confidentiality obligations. These steps will include investigating the assault and disclosing the confidential communications to others on a need-to-know basis. The university will take all reasonable steps to keep this information confidential.
Examples of designated limited confidential reporting resources include:
» Housing, Residence Life & Greek Life Staff
» Student Affairs
» Case Police or Any Police Authority
» University Faculty or Staff
» University Office of Counsel

Note: A friend or a peer who is not a privileged reporting source is considered a limited confidential source and may be required to report the sexual assault to the university or the police.

Timely Reporting/Crisis Assistance

The university supports and encourages anyone who has been sexually assaulted to report the incident to the reporting source of their choice. Prompt reporting may preserve options that delayed reporting does not, including the preservation of physical evidence, crisis counseling, and immediate police response. However, those who delay reporting can report the incident at any time, understanding that this may rule out the collection of physical evidence.

Anonymous Reports

The university recognizes that a person who has been sexually assaulted may choose not to report the crime to a limited confidential source or a privileged source. In those situations, the University allows an individual who has been sexually assaulted to file an anonymous report which allows the reporting person time to decide what course of action they want to take and also allows the crime to be counted in the campus crime statistics. To access this form, go to the university's Sexual Conduct website. Please note that even with anonymous reports, the university has an obligation to investigate; however, anonymous reporting may limit the ability to conduct an effective investigation (see University's Responsibility section in this policy).

Off-Campus Limited Communication Resources

Investigative Responsibilities

University's Responsibility

Once a report of sexual assault is made to a limited confidential source, the university is obligated to investigate and to initiate appropriate judicial process (see Reporting Section in this policy to distinguish between privileged reporting and anonymous reports). This includes the university's obligation to consider utilizing all relevant internal disciplinary, as well as external criminal, civil, and administrative processes, regardless of whether the person assaulted wants to prosecute and/or participate. If a person discloses an incident that meets the definition of sexual assault, but does not personally define the incident as that, the limited confidential source still has an obligation to report the incident to the appropriate judicial authority (i.e. Student Affairs for student reports and the Office of Equal Opportunity and Diversity for faculty and staff reports).

During the investigation of any reported sexual assault, the university may have an obligation to take appropriate interim steps to ensure the safety and welfare of the university community, including but not limited to, suspending or limiting the right of the accused to be on campus.

Police Responsibility

The police have a responsibility to uphold and enforce the law even if the person assaulted does not want to participate in the process and/or make a complaint. As a result, once a report is made to a police officer and/or once the officer learns of possible criminal activity, the officer has a duty to investigate and a duty to forward any information to the appropriate prosecutor's office for possible criminal prosecution. In addition, the Case Police will also notify Student Affairs or the Office of Equal Opportunity and Diversity as appropriate.

Campus Notification

Once a report of sexual assault is made, the university is obligated by law to take all necessary steps to protect the campus and the person who has been assaulted. This may include alerting the campus of crimes that it determines pose a threat to members of the campus community. In making such determinations, the university will consider the safety of students, faculty, and staff as well as the privacy interests of all persons involved in such incidents. Regardless of the action taken by the university, the name of any person involved will not appear on security alerts. To respect the privacy rights and choices of the person reporting a sexual assault, as well as the rights of a person being accused, the university will consider the wishes of all individuals involved in the incident to determine the level of specific information to include in the campus crime report.

Campus Crime Reporting

In compliance with the Clery Act (Campus Crime Statistics Act), all members of the university excluding privileged sources, notified of a sexual assault are required to inform the Case Police and the incident will be included in campus crime statistics. Typically, the following information is included: crime, date, location, and status (i.e. student, faculty, staff, stranger, etc.) of the individuals involved in the crime. The university never includes the names of the accuser or the accused in crime statistics.

University Judicial Processes

If a person who has been sexually assaulted chooses to pursue internal judicial procedures, s/he, as well as the accused, can expect that the university will follow appropriate due process throughout the judicial proceedings. The rights of the accuser and the accused are listed below.

Rights of the Accuser:

To protection under the applicable privacy laws (e.g. Family Education Rights and Privacy Act (FERPA) for students and Health Insurance Portability and Accountability Act (HIPPA) for faculty, staff, and students).

To be informed of the university's policy.

To have all informal proceedings arranged in a way that avoids having to be in the same room with the accused.

To participate or decline to participate in the university judicial process.

To the presence of an *advocate/advisor of their choice at meetings during the Informal and/or Formal process as designated in the applicable hearing body's judicial process. The advocate/advisor may advise the accuser but may not participate in the hearing or address the board unless responding to a direct question from the chairperson to the advocate/advisor.

To not be asked questions about past sexual conduct unless relevant to the case.

To refrain from making self-incriminating statements. However, the university will make a determination of responsibility with the information presented.

Rights of the Accused:

To protection under the applicable privacy laws (e.g. Family Education Rights and Privacy Act (FERPA) for students and Health Insurance Portability and Accountability Act (HIPA) for faculty, staff, and students).

To be informed of the university's policy.

To have all informal proceedings arranged in a way that avoids having to be in the same room with the accuser.

To the presence of an *advocate/advisor of their choice at meetings during the Informal and/or Formal process as designated in the applicable hearing body's judicial process. The advocate/advisor may advise the accused but may not participate in the hearing or address the board unless responding to a direct question from the chairperson to the advocate/advisor.

To not be asked questions about past sexual conduct unless relevant to the case.

To have the allegations investigated in a thorough and timely manner.

To refrain from making self-incriminating statements. However, the university will make a determination of responsibility with the information presented.

Judicial Process

Informal Process

the Informal Process provides the university and/or those who believe they have been sexually assaulted with a range of options designed to bring about resolution of their concerns. While an initial investigation will be pursued for every identified complaint, disciplinary action will not be taken against the accused unless the formal complaint process is initiated by the accuser or the university. Depending upon the nature of the complaint and the wishes of the accuser, informal resolution may involve one or more of the following:

Reviewing the university Sexual Assault Policy with the accused.

Providing the opportunity for the accuser to express his/her feelings about what allegedly occurred. This can be expressed in writing or communicated through a designated university representative or in person via a privileged communication source if both the accuser and the accused agree to a facilitated meeting.

The determination of any future interaction as agreed upon by the accuser and accused.

Formal Process

The Formal Process is used when the person bringing the complaint wants to file a complaint of sexual assault against another member of the community and/or if the university, after conducting an initial investigation, determines there is sufficient evidence to make a charge of Sexual Assault. The case will be referred to the appropriate hearing body for resolve and the following process will ensue:

Staff Hearing Process

University Sanctions

Regardless of whether criminal charges are filed, all members of the university community accused of sexual assault may be subject to university judicial action or sanctions, up to and including termination of your status as a student, faculty, or staff and your right to remain on campus.

False Allegations

No complaint will be considered "false" solely because it cannot be corroborated. The university reserves the right to discipline members of the university community who bring false complaints of sexual assault. In such cases of proven false allegations, discipline may include up to, but not limited to, suspension or termination.

Other Disciplinary Processes

The disciplinary process of schools or university-related organizations does not supersede this policy. This policy does not negate the right of schools or organizations to institute their own disciplinary measure of cases of sexual assault.

Support Resources

The following resources and options are available for individuals reporting a sexual assault. Similarly, the university recognizes that a person being accused of a sexual assault may also utilize the following resources and options as appropriate and applicable.

Alternative Housing & Academic Accommodations

In the aftermath of a sexual assault, the university will accommodate requests for alternative living, working, and academic arrangements as available and appropriate. This is available with all reporting options in both informal and formal choices of action.

Counseling

Counseling may be pursued following a sexual assault, no matter how much time has elapsed since the incident. On and off-campus resources are available 24 hours a day, 7 days a week for students, faculty, and staff members.

On-campus counseling services are available for students at University Counseling Services in Sears Building, University Health Service, and the Women's Health Advocate at the Flora Stone Mather Center for Women. There is no charge to students and the services are privileged communications. Counseling services also are available for faculty and staff through the Employee Assistance Program (EASE). For contact information, refer to the Privileged Communication Resource chart in this policy.

Emergency Room Examination

Any person who has been sexually assaulted may go directly to the Emergency Room at any local hospital for medical attention. For a list of hospitals close to campus, refer to the Privileged Communication Resource chart in this policy.

It is important to note that the preservation of physical evidence is critical in the event of criminal prosecution and may also be useful if university disciplinary action is pursued. To obtain the best evidence, the person who has been sexually assaulted should not wash her/his hands; shower or douche; brush her/his hair or teeth; or change her/his clothes immediately following a sexual assault. For more information, refer to the Emergency Help section of our website.

University Health Service

Students can seek treatment or advice at the University Health Service for any medical concerns, including a physical exam, sexually transmitted infections, pregnancy testing, and to obtain emergency contraception. All medical information and services are protected by privileged reporting. There is a nurse and physician on-call 24 hours a day, 7 days a week at 216-368-2450.

If a student decides to prosecute, the student must sign a University Health Service Medical Information Release Form to allow their attorney, the police, or the university to gain access to medical information applicable to the sexual assault (see the Privileged Communication charts in this policy for student, faculty, and staff medical resources).